Mister Chief Justice, and may it please the Court,
On the case of Trump vs. Alexander, where the State of Colorado asserts that Donald J. Trump is ineligible to run for president as an insurrectionist under Section 3 of the 14th Amendment, the defense has taken two positions. One, which I will address immediately, is that because ‘President’ is not among the offices listed under section 3, that therefore it does not apply to Mr. Trump. The other argument is that the 14th Amendment should not apply to Mr. Trump and he should be allowed to run for president because section 3 allows for the prohibition to be removed by a joint act of Congress, a position which implies that the President is in fact subject to the Amendment.
To address the first point briefly, the defense has stated that there are such things as officers who are appointed for a certain purpose, but such officers are not elected officials and would thus not be subject to the Amendment in any case. It was already mentioned that when the 14th Amendment was being discussed for passage in the Senate it had in fact been brought up that the wording does not include ‘President’ and Senator Lott Morill said, “Let me call the Senator’s attention to the words ‘or hold any office, civil or military, under the United States.’”
This was a matter already addressed in the Colorado Supreme Court’s ruling on Judge Wallace’s position that former President Trump has committed insurrection but is still eligible to run for office because the 14th Amendment does not specifically mention the President. It was ruled that the language is nevertheless inclusive and that the matter in question is that Mr. Trump is ineligible because he participated in an insurrection. The advocates of this position state that it is “self-executing” in the sense that such a person is necessarily ineligible to run for office in the same way that the Constitution says a 14-year old or a foreign-born citizen cannot run for President. It is not however, self-executing in the sense that there is no official determination that Mr. Trump or some hypothetical subject has or has not participated in an insurrection.
I am going to go off on a tangent here. There is a theme on social media where someone will post two frames of a movie in which he has characters react according to intelligence and common sense rather than as the plot of the movie went, and the third frame of the movie is the end credits, because if people made the sensible conclusion instead of acting as dictated by plot, the movie would be over.
The example I’m thinking of is Star Wars Episode II: Attack of the Clones. This is the scene where Senator Amidala and the two Jedi, Anakin and Obi-wan, are captured by the Separatists under Count Dooku and led into an arena, and get rescued by the new clone army created by Chancellor Palpatine. And before that, Obi-wan tells Anakin that he was captured by Dooku, who told Obi-wan that the head of the Sith controls the Senate. And Anakin deduces that if a Sith controls the Senate and the clone army is Palpatine’s project, then Dooku and Palpatine are working together. And the third panel of the meme is “Written and Directed by George Lucas” because if the Jedi made the logical conclusion, Palpatine’s scheme would be over.
We are being asked to believe that what happened on January 6 was coincidence, not conspiracy. We are asked to believe in an absurdity. We are being asked to believe that when the president assigned responsibility to his Vice President for taking his case, then blamed that vice president for not doing so, and the mob in the Capitol reading his social media posts reacted by chanting “HANG MIKE PENCE”, that was coincidence, not conspiracy. We are being asked to believe that when testimony to a Congressional committee revealed that the president told his security to disregard the metal detectors in Washington because “they’re not there to hurt me”, that was not assisting an insurrection. When he refused to send troops to restore order for several hours and left that matter to Mike Pence himself, that was not assisting an insurrection. When supporters of the president guided tours through the Capitol halls for people who committed violence on January 6, that was not assisting an insurrection. When Jefferson Davis was placed on trial for treason after the Civil War, his own lawyers argued that he had already been punished by the provisions of Section 3 of the 14th Amendment when he had committed no actual crime other than simply being the head of the insurrectionist government.
We are being asked to believe that we cannot declare Donald Trump ineligible for federal office as an insurrectionist because the mere fact of his actions is not enough, and he is innocent because he was not so stupid as to declare, “Ey, I’m committing an insurrection here!”
When that was never the standard when the Amendment was written and when it was previously applied.
I am going to go on another tangent and this does relate directly to the matter at hand. In board games, there is a concept known as “rules as written” because the rules as written are often different from the game as actually played. In Monopoly, it is a little-known rule that when you land on a space and you don’t want to purchase the property, you can’t just end the turn and pass to the next player. You have to set up an auction, in which all players are eligible, including the one who refused first purchase, and the winning bid wins, even if it’s less than the listed price of the property and even if it’s made by the person who refused the straight purchase.
This actually makes the game go faster because the properties get snapped up faster, but because you have to run through auctions, most players don’t bother with the rule cause they don’t want to deal with it. So for the sake of making the game easier and less complicated, we actually make it longer and more complicated.
We run the American government according to house rules all the time. For instance, we have been having the President take this country to war for decades. The last time Congress formally declared war was after Pearl Harbor in World War II. We give the President all kinds of powers that aren’t really enumerated in the Constitution. Because it’s easier than having Congress do its job. This is what happens when we do not place Article 1 ahead of Article 2.
And this is what ties to the matter at hand, because the discussions have related not only to impeachment of the president but the matter of how Section 3 of the 14th Amendment is to be enforced or reversed. As we know, Article 1, section 2 of the Constitution states that the House of Representatives shall have sole power of impeachment, implying a simple majority vote in the absence of another threshold. Section 3 of Article 1, referring to the Senate, says impeachment cases must be tried in the Senate, and does specify that “no Person shall be convicted without the Concurrence of two thirds of the Members present.” This would seem to be an easy enough standard because in theory it allows the case to be established but only allows conviction when the guilt of the subject is clear and the offense is grave. It is assumed that because the Senate is the senior house of a separate branch of government that they are a neutral judge. In practice, we disregard the fact that since 1800, the President of the United States is the de facto leader of his political party in Congress. And thus while a preponderance of the House might be enough to send a case to the Senate, in practice a conviction in the Senate will never occur, because due to party allegiance, which is not accounted for in the Constitution, at least one-third of the Senate is going to be taking the President’s side regardless of the charge. Were that not the case, it raises the question how such an individual could get to be President in the first place.
Now on the matter of the 14th Amendment, Trump’s defense goes between stating that the Colorado decision was improper because Congress can act once a candidate is elected but before taking office, or that the Court does not need to take responsibility in this case because it properly rests with Congress. From the text, no person may run for office who “shall have engaged in insurrection or rebellion”, but, “Congress may by a vote of two-thirds of each House, remove such disability.”
That is an even higher standard than the threshold for impeachment. It would require not only a two-thirds vote of the Senate but of the House of Representatives. And if we can see the practical chances of a successful impeachment, what are the chances that the joint Congress would restore an insurrectionist by a two-thirds margin?
When we say that an unethical president can be corrected and removed by impeachment, in practice we are saying “that’s not ever going to happen.” When we are saying that the issue with section 3 can be corrected by a two-thirds vote of Congress, we are saying, “that’s not ever going to happen.”
We are supposed to take the plain text of the Constitution and make that the ruling as though that were the only matter that applied.
When, in a past decision, the Court overruled precedent and decided that the the rights of citizens could be taken away by the states on a certain matter, in practice meaning that these rights apply to Americans in some states and not others, there was no consideration given as to the consequences or whether that would cause social chaos. All that mattered was the purity and the principle of the decision itself. And we are now asking whether applying the insurrection clause against one candidate, even with cause, should be avoided because that would disenfranchise voters? We are saying, in that case, that the State of Colorado cannot make that decision, if only on its own behalf?
In the past, there was no consideration as to whether the Court’s unilateral decision disenfranchised people in some states but not others, and now we’re expected to believe that that question matters?
On one recent opinion, it was remarked, “the current Court is textualist only when it suits it. When that method would frustrate broader goals, special canons like the ‘major questions doctrine’ magically appear as get out-of-text-free cards.”
And yet we are supposed to believe that courts make decisions on the law as it is written with no consideration of context or consequences, that this is a place of law, not politics.
We all know that is not the case.
And to state this is not an accusation of bias or malfeasance, it is a statement of fact. It is impossible to make a decision on law that has no bearing on politics because law shapes politics and vice versa. The law in an absolute monarchy is going to be different than the law in a constitutional republic, and necessarily that dictates the process of politics and the governance of the country. When we create this arbitrary distinction between what the law says and how the government actually works in practice, and apply it only as we select, we are making sure that the law cannot be applied practically.
Any decision you make is going to have consequences, including the decision to do nothing.
What then is the role of a separate and independent judiciary?
The role of an independent judiciary is, and can only be, to make a fair ruling that is consistent with both a small-d democracy and a small-r republican system of government. To wit – you cannot have a democracy if one man can overrule an election. You cannot have a constitutional republic if one man can override the Electoral College. The decision here for us today is not just whether Donald Trump is immune to section 3 of the 14th Amendment, or to any laws at all, but whether the insurrection clause of the 14th Amendment even applies or is merely an appendix that can be removed from the constitutional body without consequences. Because if it does not apply in the case of Donald Trump, then find a case in American history where it would be more appropriate.